C and C Transport Enterprise Pty Ltd v Younes Chandab

[2010] NSWSC 1271

CITATION:	C & C Transport Enterprise Pty Ltd v Younes Chandab & Anor [2010] NSWSC 1271
HEARING DATE(S):	18, 19, 31 August
JUDGMENT DATE :	9 November 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Bergin CJ in Eq
DECISION:	Plaintiff sole director and shareholder.
CATCHWORDS:	CORPORATIONS - where parties previously married agree in property settlement to reciprocal relinquishment of directorships and shareholdings in certain corporations - whether the former wife is the sole director and shareholder - whether the former wife agreed to reinstate the former husband as a director/shareholder
LEGISLATION CITED:	Family Law Act 1975 (Cth)
PARTIES:	C & C Transport Enterprise Pty Ltd (First Plaintiff / Cross-Defendant) Nachwa Chandab (Second Plaintiff / Cross Defendant) Younes Chandab (Defendant / CrossClaimant)
FILE NUMBER(S):	SC 2009/291541
COUNSEL:	J Chambers (Plaintiffs /Cross-defendants) I Chrysostomou (Defendant / Cross-claimant)
SOLICITORS:	Antwan Lawyers (Plaintiffs/Cross-defendants) Barber Lawyers (Defendant/Cross-claimant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN CJ in Eq

9 NOVEMBER 2010

2009/291541 C & C TRANSPORT ENTERPRISE PTY LTD & ANOR V YOUNES CHANDAB & ANOR

JUDGMENT

1 By Second Further Amended Summons filed in Court on 31 August 2010 the plaintiffs, C & C Transport Enterprise Pty Ltd (the Company) and Nachwa Chandab (the plaintiff), seek declarations that since 11 September 2006 the plaintiff has been the sole director and sole legal and beneficial owner of the entirety of the issued share capital in the Company.

2 By Amended Cross Summons filed in Court on 19 August 2010, Younes Chandab, the defendant/cross claimant and former husband of the plaintiff, seeks declarations that he is a director and member of the Company; that the plaintiff has breached her fiduciary and statutory duties to the Company; and an order that the plaintiff be removed as a director of the Company. There is an alternative claim for the appointment of a manager and/or receiver to the Company.

Background

3 The plaintiff and the defendant were married in 1987. They had five children including a son, Jayden, who gave evidence in the proceedings. The plaintiff and the defendant separated in June 2006 and their divorce and property settlement was finalised in 2009. Although separated, the plaintiff and the defendant resided in the matrimonial home at Dural until October 2006 when the defendant moved out of the premises. It is clear that the separation process was volatile and unfortunately it will be necessary to detail some of these difficulties because of the nature of the competing claims in respect of the documents that were lodged with the Australian Securities and Investments Commission (ASIC) notifying changes in directorship and membership of the Company.

4 During their marriage the plaintiff and the defendant commenced a parcel delivery business under the unregistered name "Fast Delivery Service". Contracts, including with Australia Post, were awarded to the plaintiff and the defendant trading as Fast Delivery Service. In about 2000 a friend of the plaintiff and the defendant and the plaintiff's brother spoke to them about the work that each had been doing in the area of children with special needs as contractors/sub-contractors with the Department of Education and Training (the Department). In September/October 2000 when the defendant was overseas, the plaintiff, on behalf of Fast Delivery Service, applied to the Department to become a "contracted driver". In January 2001 the Department awarded the first contract to the plaintiff and the defendant trading as Fast Delivery Service for 12 months. That contract related to a number of "school runs".

5 At the end of 2001 the Department changed its tender process. Although it was not a condition of the Department's new tender process, the plaintiff and the defendant, on their accountant's advice, established the Company to operate the business. The Company was incorporated on 1 March 2002. The plaintiff and the defendant were each directors and each held 50 ordinary shares in the Company. The Company was successful in securing contracts with the Department each year from 2001. The defendant drove one of the Company vehicles and was paid a salary. After the Company was incorporated the plaintiff ceased any driving duties and attended to the administrative side of the business.

6 In about 2004 the defendant's driver's licence was either cancelled or suspended. He decided to set up a business importing and selling marble and granite and established the company, C & C Marble & Granite Pty Ltd (CCMG), to operate that business. The plaintiff and the defendant were both directors of CCMG and equal shareholders, each owning 50 ordinary shares. CCMG was funded partly by a facility for $550,000 secured by a mortgage over an investment property owned by the plaintiff and the defendant in Oatlands.

7 In about 2006 whilst the defendant's driver's licence was still suspended or cancelled, he became involved with his cousin in a phone card business known as Global Networks Pty Ltd. It is apparent that in some way this business became associated with the Company. This business was not successful and eventually failed.

8 On 11 September 2006 forms were lodged with ASIC notifying: (1) the appointment of Paul Huy Nguyen & Co Pty Ltd as the registered agent for the Company and for CCMG; (2) cessation of the defendant's appointment as a director of the Company from 11 September 2006; (3) an increase in the plaintiff's shareholding in the Company from 50 ordinary shares to 100 ordinary shares; (4) a decrease in the defendant's shareholding in the Company from 50 ordinary shares to nil; (5) cessation of the plaintiff's appointment as director and secretary of CCMG from 11 September 2006; (6) appointment of the defendant as secretary of CCMG from 11 September 2006 (he remaining as a director); (7) a decrease in the plaintiff's shareholding in CCMG from 50 ordinary shares to nil; and (8) an increase in the defendant's shareholding in CCMG from 50 ordinary shares to 100 ordinary shares. There is controversy about these Forms with which I will deal later in the Judgment.

9 In September 2006 the plaintiff's solicitor was Edward Gilchrist then with LAC Lawyers and the defendant’s solicitor was Tom Zreika with Queen Street Chambers, solicitors. The plaintiff filed on 20 September 2006 an application in the Federal Magistrates Court returnable on 6 October 2006. Mr Gilchrist prepared a Deed that was signed by the plaintiff in his presence on 4 October 2006. The defendant signed the Deed in Mr Zreika’s presence on 6 October 2006. Both solicitors signed a Certificate under the Family Law Act 1975 (Cth) in relation to their respective clients, certifying that they had advised them independently in relation to the effect of the agreement and the advantages and disadvantages of making the agreement. That Deed included the following (with the plaintiff referred to as “Nachwa” and the defendant referred to as “Younes”):

RECITALS
A. Younes and Nachwa were married on 8 February 1987.
B. Their marriage had been irretrievably broken down. Younes and Nachwa separated on 18 June 2006 however the parties have continued to live separately and apart under one roof.
…
E. At the time of making this agreement there was no other written agreement between the parties with respect to any of the matters mentioned in Section 90C of the Family Law Act 1975. This is a financial agreement for the purposes of Section 90C of the Act.
F. As at the date of separation Younes and Nachwa were the joint registered proprietors of the real property situated at [Dural].
G. The home has a present agreed value of approximately $1,300,000.00. There is a mortgage secured on the home to National Australia Bank Limited in the sum of $900,000.00.
H. Younes and Nachwa are also registered proprietors of an investment property at [Oatlands] which is … valued at $700,000 and is subject to a mortgage to Commonwealth Bank of Australia in the sum of $170,000.00 and is security for a line of credit with the same Bank in the sum of $390,000.00.
I. Nachwa is a full-time carer of the children of the marriage and supports herself entirely from the earnings as a director of C & C Transport Enterprise Pty Limited.
J. Younes supports himself from his earnings as a director of C & C Marble & Granite Pty Limited.
K. The parties have agreed that their respective companies are of minimal value, depending as they do on the personal efforts of each of them.
…

K (sic) Nachwa has use of the Toyota motor vehicle owned by her company and Younes has use of a Holden Rodeo owned by his company and also has a 2001 Mercedes Benz registered in his name.
L In order to reduce the possibility of resorting to litigation and to avoid or reduce any disputes between them in the future about ownership, use and descent of property, Younes and Nachwa have agreed to put their agreement in writing.
…
IT IS AGREED
1. This Deed will be binding upon the heirs, executors, administrators and assigns of each party.
2. Forthwith on signing this agreement Younes will vacate the home and remove all of his personal belongings from the home.
3. Within 14 days of the date of this agreement, Younes shall do all acts and things necessary to assign to Nachwa all of his right title and interest in the Dural property, including but not limited to executing a Transfer under the Real Property Act.
4. Upon delivery of the duly executed Transfer referred to in clause 2 (sic) above, Nachwa will thereafter indemnify Younes against all payments and liability with respect to the mortgage to the National Australia Bank Limited secured on Dural, as well as Council rates, Sydney Water charges and gas and telephone accounts relating to the said property.
5. Nachwa will also be responsible for all payments to AIF in relation to the security system for Dural and the National Australia Bank Visa credit card.
6. Nachwa will pay Younes the sum of $100,000.00 within one calendar year of the date of this agreement.
7. Nachwa shall retain all the furniture, electrical items and other chattels contained in the home as at the date of this agreement.
8. Within 14 days of this agreement Nachwa will do acts and things necessary to assign her right title and interest in the Oatlands property to Younes, including but not limited to executing a Transfer under the Real Property Act.
9. Upon delivery of the duly executed Transfer referred to in clause 2 (sic) above, Younes will thereafter indemnify Nachwa against all payments and liability with respect to the mortgage to Commonwealth Bank of Australia secured on the Oatlands property, as well as Council rates, Sydney Water charges and gas and telephone accounts relating to the said property.
10. In addition to the mortgage referred to in clause 7 (sic) , Younes will indemnify Nachwa against all payments and liability with respect to the Commonwealth Bank line of credit secured on Oatlands.
11. Within 14 days of the date of this agreement Younes will sign all such documents that are necessary to transfer his shares in C & C Transport Enterprise Pty Limited to Nachwa or her nominee.
…
15. This agreement is intended to operate in substitution for all the rights of either party under Part VIII of the Family Law Act 1975 (Cth) to obtain maintenance or division of property orders.
…
17. No amendment to this Deed will be binding on the parties, unless it is in writing and signed by all the parties to this Deed.

10 The defendant moved out of the Dural property on 8 October 2006. Unfortunately this was a hostile episode on this occasion to which the police were called. The police took statements from the plaintiff and from Jayden. These found their way into evidence because of an issue as to whether the defendant gave either the original or a copy of the Deed to the plaintiff on this occasion.

11 On 16 October 2006 Mr Gilchrist wrote to Mr Zreika confirming that there was a degree of urgency attached to dealing with the financial matters between the parties, in particular that there were substantial arrears in payments on the loan for the investment property at Oatlands. Mr Gilchrist suggested that an immediate sale of both properties was necessary to ease the financial strain. He sought Mr Zreika’s confirmation as to whether he was acting for the defendant and suggested that if the defendant was not prepared to cooperate in having the properties listed for sale it would be necessary to obtain orders from the Court.

12 On 18 October 2006 Mr Zreika responded and confirmed that he acted for the defendant. After stating that the properties held significant sentimental value to the defendant and referring to his unwillingness to sell the properties, particularly the Dural property, Mr Zreika went on to claim that the plaintiff had failed to make payments on loans because she had mismanaged the Company business; had sapped the Company and home loan accounts and funnelled the funds into the children's accounts; had taken out a line of credit of $390,000 without the "requisite authority" from the defendant whilst he was overseas (with the claim that it would have been impossible for him to sign the mortgage documents); failed in her duties as a director of the Company in trading insolvently; and failed to make the necessary wage payments to the defendant "who is also an employee of the business". There was no suggestion in this letter that the defendant was a director of the Company.

13 On 19 October 2006 Mr Gilchrist responded to Mr Zreika’s letter of 18 October 2006. Although noting that it was not a time to engage in a "war of words" Mr Gilchrist stated that the defendant's "spurious allegations" could not be allowed to pass entirely without comment. In this regard Mr Gilchrist said:

Firstly, it is unlikely your client's knowledge regarding our client's business affairs is other than superficial, because he took no particular interest in these matters. Secondly, your client until recently was also a director of C & C Transport.

14 On 8 November 2006 Mr Gilchrist and Mr Zreika had a telephone conversation in relation to the proceedings. On the same day Mr Gilchrist wrote to Mr Zreika referring to that conversation and stating:

An application was filed in the federal magistrate's (sic) court on 20 September 2006, returnable on 6 October 2006. On 5 October 2006 we faxed a Notice of Discontinuance to the Court and assuming that was the end of the matter we did not attend Court on the return date. We subsequently received a letter from the Court advising the matter was adjourned until 27 November 2006 for further directions.
As agreed, we enclose for your information a copy of the Application, Notice of Discontinuance and letter dated 12 October 2006.
It may be useful to keep the proceedings on foot, if we are unable to resolve the dispute otherwise, to retain priority in the interest of finalising all outstanding issues at an early date.

15 The defendant then instructed new solicitors, Philip Sim & Associates. Mr Sim wrote to Mr Gilchrist on 24 November 2006 confirming that his firm had been instructed to act for the defendant in respect of the family law matters. That letter included the following:

We note that you will be attending the Federal Magistrates Court at Parramatta and mentioning this matter by consent and adjourn these proceedings to a future date. We further note there has been some agreement as to the binding agreement dated 6 October 2006 and we will seek to draft terms of settlement in accordance with that agreement.
We will shortly contact you further and confirm arrangements for the sale of the respective properties.

16 The plaintiff and the defendant signed Terms of Settlement on 11 and 14 December 2006 respectively. Those Terms were filed with the Federal Magistrates Court as Consent Orders on 22 December 2006. The orders provided for the transfer of the Dural property to the plaintiff with the plaintiff indemnifying the defendant in relation to the mortgage over the property. There was provision for the payment of $100,000 by the plaintiff to the defendant on or before 1 January 2008 with a default regime for the sale of the Dural property. There was also a regime for the sale of the Oatlands property. Those orders included the following:

12. That within 14 days of the date of these orders the wife will sign all such documents that are necessary to transfer her shares and any directorship in C & C Marble & Granite Pty Ltd ACN 112 152 226 to the Husband.
13. That within 14 days of the date of these orders the wife will deliver to the husband any property, stock, plant and equipment in her possession being the property of C & C Marble & Granite Pty Ltd ACN 112 152 226.

17 On 6 February 2007 the defendant made a Statutory Declaration in the presence of Raed Rahal, a solicitor with the firm James Lahood & Associates, in the following terms:

1. I was previously a director of C & C Transport Enterprises Pty Ltd ("the company").
2. During my time as director of the company I entered into a business venture ("the venture") with a company by the name of Global Networks Pty Ltd ("Global"). The venture involved the purchase and subsequent wholesale of international telephone cards.
3. The venture was arranged, negotiated and eventually operated by me solely without the knowledge or involvement of my wife Nachwa Chandab.
4. As a result of various disputed issues between the owner of Global and I, Global commenced proceedings to wind up the company based on Globals claims that they are owed money by the company. I have instructed my solicitor to defend these proceedings in the Supreme Court of Victoria.
5. Should my defence be unsuccessful and the company is wound up I request that the Department of Education transfer the current contract held by the company to Nachwa Chandab personally.
6. Considering that the current action against the company and the problems that have arisen due to same are predominantly a direct result of my actions, I confirm that I will not make any claim or interfere in any way with the potential transfer of the contract by the Department of Education to Nachwa Chandab either now or in the future.

18 On 28 August 2007 the same solicitor before whom the defendant had made the Statutory Declaration wrote to ASIC enclosing a completed ASIC complaint form and a statement of the defendant. That statement included claims that the plaintiff had forged the defendant’s signature on documents to obtain a line of credit loan and the following:

9. It has also now come to my knowledge that as well as the line of credit being obtained without my knowledge or consent that I was also removed as a company director of C & C Transport without my consent or knowledge in or about September 2006. While I was within the country at this time I was not living within the family home due to another dispute with Nachwa. Also, I say that at the same time a transfer of my shares to Nashwa occurred without my consent and without any consideration.
10. I have never signed any documents of any nature which would cause me to be removed from my position within C & C Transport, nor have I been a party to any meetings of the company where this was resolved.
11. It is my understanding that my solicitors have confronted the accountant about how my removal from the company occurred. During the discussions with my solicitors, James Lahood & Associates, the accountant made admissions that he had never sighted any executed documents that would indicate that I consented to my removal from C & C Transport. The accountant further admitted that he had relied on Nachwa's word that she had all the original executed documents required by law when removing a director from their position within the company and transferring shares.

12. At my solicitor's request the accountant forwarded some ASIC forms which he had on his file relating to the changes made to C & C Transport. The accountant provided two form 362’s executed by Nachwa, which had the effect of appointing and then removing the accountant as an agent of the company so that he is able to lodge the required forms online to remove me from my position within C & C Transport and an (sic) form 484 executed by Nachwa authorising my removal from C & C Transport. Annexed and marked "A" is a copy of the forms. Please note that all these forms were dated 11 September 2006.
13. As well as having me removed from C & C Transport I was also able to obtain documents which had the effect of removing Nachwa from any official capacity within another company called C & C Marble & Granite Pty Ltd ACN 112 152 226 ("Marble & Granite"). These documents consisted of two 362 forms which appointed and then removed the accountant as agent of the Marble & Granite for the purpose of lodging the forms online and a 484 form authorising a change to Marble & Granite. These forms were all purportedly executed by me. However, I say that I have never authorised the accountant as an agent of Marble & Granite for the purpose of lodging these forms and that I have never executed these forms. The signature contained on the forms does not resemble my signature. Annexed and marked "B" is a copy of the ASIC forms allegedly executed by me and specimen copies of my actual signature as it appears on various cards. Please note that these forms were also dated 11 September 2006.

19 The defendant requested that ASIC investigate and prosecute the plaintiff for breaches of the Corporations Act 2001. On 27 September 2007 ASIC advised that it would not investigate the complaint because it appeared it was an "internal company dispute". The defendant persisted unsuccessfully with his request for ASIC to investigate and prosecute the plaintiff.

20 The Department awarded the contract for the year 2009 to the plaintiff and the Company.

21 As I have said earlier, the deterioration of the relationship between the plaintiff and the defendant was at times volatile. This resulted in the granting of an Interim Apprehended Violence Order (AVO) against the defendant on 25 November 2008 in which he was ordered not to assault the plaintiff and not to engage in any other conduct that intimidated the plaintiff. The defendant was also ordered not to stalk the plaintiff or go within 200 metres of the Dural property. It was noted that the defendant was present in Court when the order was made and the defendant was directed to attend the Local Court at Hornsby on 13 January 2009. The order also contained a notation that if the defendant failed to attend the Local Court on 13 January 2009 orders might be made against him or a warrant might issue for his arrest to bring him before the Court.

22 The plaintiff claims that she attended the Hornsby Local Court on 13 January 2009. The defendant claims that he met with the plaintiff in Parramatta on that day and that she signed a form reinstating him as a director of the Company. The defendant claimed that the plaintiff asked him not to lodge the form until the "settlement in the Federal Magistrates Court is finalised" and after she told him to do so.

23 By this time the plaintiff had not paid the $100,000 to the defendant. She had also found out that the defendant had made an arrangement with the Bank that left her with a liability of $23,968.25 to the Bank. Accordingly the plaintiff wished the Consent Orders to be adjusted to reduce the order for payment of $100,000 to $76,031.75 in recognition of her payment to the Bank. The adjusted Consent Orders were filed with the Federal Magistrates Court on 17 February 2009.

24 In September 2009 the defendant lodged ASIC Forms which included his appointment as a director of the Company from 13 January 2009, the issuing of a further 100 ordinary shares in the Company and an increase in his shareholding from nil to 100 ordinary shares. The plaintiff became aware of these forms and on 22 October 2009 notified ASIC and Westpac Banking Corporation with which the Company held an account. On 29 October 2009 the plaintiff lodged further forms with ASIC removing the defendant as a director and reducing his shareholding in the Company to nil.

Proceedings commenced

25 The plaintiff commenced these proceedings before the Duty Judge in Equity on 27 November 2009. The proceedings were heard on 18, 19 and 31 August 2010 when Ms J Chambers, of counsel, appeared for the Company and the plaintiff and Mr I Chrysostomou, of counsel, appeared for the defendant. ASIC, as second defendant, has apparently filed or agreed to file a submitting appearance.

Consideration

26 The plaintiff claims that in respect of the agreed division of property in their separation and divorce, the defendant agreed to relinquish his directorship and shareholding in the Company and she agreed to relinquish her directorship and shareholding in CCMG. The first issue for determination is whether the parties agreed to relinquish these directorships and shareholdings.

27 In her first affidavit of 27 November 2009, the plaintiff gave evidence that in about September 2006 after she and the defendant had agreed upon the relevant division of property, they jointly consulted their then accountant, Paul Nguyen. The plaintiff claimed that on 11 September 2006 she and the defendant attended upon Mr Nguyen who presented “certain documents relevant to our intended change of shareholding and resignation by Younes as a director of the Company” for signature. The plaintiff referred to the relevant ASIC forms and claimed that the defendant ceased to be a director of the Company on about 11 September 2006.

28 After the defendant had filed his first affidavit on 15 January 2010 denying that he had attended upon Mr Nguyen and asserting that the signature on the ASIC forms was not his signature, the plaintiff made a further affidavit on 20 May 2010 in which she reaffirmed her evidence in her earlier affidavit and stated that she saw the defendant sign the ASIC Forms. The plaintiff was cross-examined in relation to an affidavit that she affirmed in the proceedings in the Federal Magistrates Court on 12 November 2009. In that affidavit the plaintiff claimed that the defendant was present at a first consultation with Mr Nguyen at which time the plaintiff said to Mr Nguyen that she and the defendant were involved in a divorce and property settlement and asked him to prepare documents “whereby we transfer our shares in each other’s company” and the defendant “resigns as a director” of the Company. That affidavit included the following (par 15):

To the best of my knowledge and belief, on or about 11 September 2006, Younes and I attended Paul’s office where Paul presented to us for signature certain documents relevant to our intended change of shareholding and resignation by Younes as a director of the Company. Annexed herewith and marked as indicated are copies of the documents which I believe were then signed by Younes and me.

29 The defendant highlighted the difference between the evidence given in the affidavit in the Federal Magistrates Court affidavit in which the plaintiff said she believed the defendant signed the documents and the evidence given in her affidavit in these proceedings in which she claimed she saw the defendant signed the documents to suggest that the evidence given in these proceedings should be disbelieved.

30 In her affidavit affirmed on 20 May 2010 the plaintiff claimed that her sister, Safaa Darwich, was also present at the meeting when the defendant signed the ASIC Forms. Ms Darwich affirmed an affidavit on 21 May 2010 in which she gave evidence that the plaintiff had asked her to attend the meeting with Mr Nguyen on 11 September 2006. Ms Darwich claimed that she was able to remember the date of the attendance at Mr Nguyen’s office because it is her nephew’s birthday. Ms Darwich also gave evidence that when the defendant arrived, Mr Nguyen called them all into his office where they stayed until the “business of signing the documents was concluded and we all left at the same time”.

31 In cross-examination Ms Darwich denied that her affidavit evidence was “all made up” (tr 46). Ms Darwich is a lending manager with Suncorp Bank. Prior to that appointment she had been employed in other lending roles including at Acquired Home Loans and subsequently as a credit analyst for the Commonwealth Bank. Ms Darwich also has an interest in the company, Qualiya Group Pty Ltd, with her husband. During her cross-examination Ms Darwich was shown a number of emails from her email address one of which was addressed to the plaintiff. That email included the following:

Here are the details for the customers I need employment for. They are a husband and wife and I just want them both to be employed by you.

32 The email included the names of the “customers”, their dates of birth, their job descriptions, their annual salary, their type of employment “permanent full-time” and their “length” of employment – for the husband “2 years and 8 months” and for the wife “2 years 3 months”. The email concluded with the statement “If you need anything else please call me”. The cross-examination in respect of this email (at that time MFI 2) included the following (tr 36-40, and 45):

Q. What I want to suggest to you, Madam, is that you had contacted your sister in order to represent to the lender that these people were employed by your sister, that’s the purpose of that email; isn’t it?
A. That’s because they are employed by my sister.
Q. Well, what does the first part of your email say?
A. “Here are the details for the customers I need employment for”.
Q. You need employment for?
A. Yes, that means I need the employment details. I need their pay-slips.
Q. Are you in the business of telling your sister who she should employ?
A. No, I’m not telling her who she should employ. Sometimes they don’t speak English properly, so I have to call their employer and ask for their details.
Q. What I want to suggest to you, Madam, you’re suggesting in that email that in the event the lender calls your sister, she will represent to that lender that “these people are in fact employed by me”; that’s so?
A. No, you’re implying that, but that’s not what I have said.
…
Q. What I want to suggest to you, contrary to your evidence, Madam, is that you are the one telling your sister that you need these two people to be employed; that’s what you are saying in that email?
A. No, I am saying to my sister that these people cannot speak English properly. Because I spoke to her over the phone first and then she asked me, “can you please just put their names because I have got a lot of people employed”. So that’s why I have got either myself or my husband has done it, because I was working for someone else at that time.
Q. The words, “Nachwa, here are the details for the customers I need employment for. They are husband and wife and I just want them to be both employed by you”?
A. Well, you’re implying that, but that’s not what it actually is.
Q. I am also suggesting to you that you’re dictating the terms of their employment to your sister?
A. No, I’m not dictating their terms. It is what the client has told me, that’s what they are and that’s what their income is. It’s like when I call and confirm when I do that, we have to.
…

HER HONOUR:
Q. Now did you want to review some of the evidence that you gave to me?
A. Yes.
Q. What do you want to say?
A. That I’m not aware of any of those things that were sent in the email because, for one, even though I was part of the company, I wasn’t working there at that time.
Q. Which company is that?
A. Qualiya Group. I was working for another firm.
Q. Qualiya Group, you were a Director at that time?
A. I think I was taken off as Director before 2008.
…

Q. In relation to the other document marked MFI 2, what I suggest is that your request that those two people be employed for the specified period, husband and wife as you identify, and you have also identified the bottom of that letter “if there is any questions please contact me”, do you see that on the bottom of that e-mail, MFI 2?
A. Yeah, it says “contact me”, but doesn’t say who’s “me”.
Q. What I suggest to you is that in accordance with that request, finance for those two individuals was probably obtained for them, wasn’t it?
A. I don’t know because I don’t know that client and like I said, I don’t have any more accreditation with Qualiya after I left the directors. Once you work for another bank you can’t also be putting deals through another firm.

33 Ms Darwich was also shown another email from her email address to the plaintiff’s email address. Ms Darwich (also known as Safaa Taroco) gave evidence that the word “habib” is a term of endearment. The email was in the following terms:

Hi habib
Safaa Taroco Operations Manager employed since may 2005, 3 years and 1 month earning $93,700 per annum, permanent fulltime.
Someone from Macquarie Bank might call.
Thanks.

34 Ms Darwich was cross-examined in relation to that email as follows (tr 43-44):

Q. Is it, what I suggest to you is that that is an e-mail that you sent to your sister in order to represent to the prospective lending institution, i.e. Macquarie Bank, that you are employed at her company as an Operations Manager?
A. That’s what its states in the letter, yes.
Q. Employed since 2005, three years and one month, earning $93,700 per annum, permanent full-time, “someone from Macquarie Bank might call” you see that?
A. Yes, I can see that.
Q. I put it to you that you actually sent that to your sister?
A. No, I did not send it to any sister because I was at work.
Q. You sent it to your sister in order to gain some kind of a financial advantage from, or some finance from the company known as Macquarie Bank in order to get a loan?
A. I was already working somewhere else, so why would I say I was working somewhere else?
Q. Can you account for how this e-mail was transmitted to your sister?
A. No, I can’t.
Q. What I suggest to you is that it is, the reason you can’t account is the truth does not assist you, does it?
A. I am telling the truth.

35 In cross-examination the plaintiff denied that she had received the above-mentioned emails. Although Ms Darwich’s evidence in relation to these emails seemed to be quite unrealistic I should say that there was no evidence tendered by the defendant to prove that the proposed arrangements referred to in these emails were used in support of any applications for finance.

36 The defendant sought to challenge the plaintiff’s credibility generally by cross-examination in relation to the Deed dated 6 October 2006 (the Deed). In her first affidavit affirmed on 27 November 2009, the plaintiff exhibited a copy of the Deed and gave the following evidence in relation to it (par 9):

In or about mid-2006 I instructed my then solicitors to negotiate a property settlement with Younes, with a view to final dissolution of the marriage and an agreed division of property so that we could live our lives independently of each other. As a result of those negotiations, Younes and I agreed to a specific division of property, which agreement was formalised in a written financial agreement under the Family Law Act signed by me and Younes.

37 In his affidavit sworn on 15 January 2010 the defendant gave evidence that the Deed was never sent to the plaintiff. He also claimed that he did not give instructions to his solicitors to send it to the plaintiff because he had changed his mind immediately after executing it. The defendant claimed that he was required by the police to leave his car in the driveway of the Dural property and that the Deed “went missing”. The defendant also claimed that the plaintiff obtained a copy of the Deed by taking it from his car by using a spare set of keys that he had left at the Dural property.

38 In her second affidavit affirmed on 20 May 2010 the plaintiff denied that she had a key for the defendant’s car and denied that she had removed anything from the vehicle. The plaintiff’s evidence in that affidavit included the following (par 27):

As we were, at the time, still living under the one roof, but separated as a couple, Younes handed me the signed Financial Agreement. Younes did not say to me at any time that he had changed his mind about the agreement.

39 In a third affidavit affirmed on 10 August 2010 the plaintiff gave the following evidence in relation to the Deed (par 18):

I had signed two copies of this agreement, one was intended for me and the other for Younes. Prior to 6 October 2006 I signed two copies with my Solicitor, who provided the independent advice certificate, and then handed both to Younes for him to take to his Solicitor for signing, as he needed to have independent legal advice and provide a certificate also. Some time passed before Younes handed me the signed document, as referred to in paragraph 27 of my Affidavit affirmed 20 May 2010. I do not now recall precisely when it was handed back to me, but it was probably after the commencement of proceedings in the Federal Magistrates Court on 20 September 2006, by which time I had assumed he was not signing it.

40 The plaintiff gave the following evidence-in-chief at the trial in relation to paragraph 18 of the affidavit affirmed on 10 August 2010 (tr 63-64):

Q. What do you say about that?
A. All I can say is that I must have got incidents mixed up and that this is not correct.
Q. So that I can clarify, if I can take you just to the first part of the passage that you have identified which says, “Some time passed before Younes handed me the signed document”, is the reference to signed document … what are you referring to as the signed document?
A. See, that’s the part I don’t understand because I don’t remember that was referred to.
Q. And your evidence that your husband handed you the document, you want to withdraw that evidence, do you?
A. No. I don’t want to withdraw that. All I am saying is that this does not apply to the deed, that part of that paragraph.
Q. Did he give it to you?
A. Yes, he did
Q. When did he give it to you?
A. He gave me it to me on the day that he signed it.
…
Q. That is the deed?
A. Yeah, I understand that, your Honour. What I am saying is that part of the paragraph where it says “Some time passed”, because I do remember when he gave that deed to me on the day that he signed it.
Q. I see. So the actual events you wish to maintain, but you say that the difference between what you have said here and the reality is that he gave it to you on the day that he signed it?
A. Yes your Honour.

41 In cross-examination the plaintiff gave evidence that the defendant took both copies of the Deed that she had signed (tr 68). When asked “How did you get possession of the October deed?” the plaintiff said “He gave them to me” (tr 69). The plaintiff also said “The day he signed them, yes, which was two days after I had given them to him” and “I said I gave them to him two days after, he gave them back to me two days after I had signed them” (tr 69). The plaintiff was further cross-examined as follows (tr 69-70):

Q. Yes. You had them on the 4 ^th of October 2006?
A. That’s correct.
Q. All right. So your evidence is that on or about the 6 ^th of October 2006 is when he gave them back to you?
A. That’s correct.
Q. And that was at the house?
A. Yes, it was.
Q. And what were the circumstances when he gave them to you, did he just hand them to you or was there a conversation?
A. No. We weren’t really talking.
…
Q. Yes. You were quite keen to get a copy of those October signed deeds?

A. It was important to me that we came to some sort of agreement, yes.
Q. And when he gave them to you did he say anything to you?
A. I don’t recall what he would have said to me, but it wouldn’t be much.
Q. There was no argument?
A. Pardon?
Q. There was an argument?
A. Over the documents? No. We weren’t talking.

42 The plaintiff agreed that the police were called to the Dural property on 8 October 2006 at which time she provided a statement to the police which included the following (Ex 5):

4. Over the last 6 months my husband and I have had a number of verbal arguments. I have not reported these matters as I have been afraid of my husband. My children have seen the arguments between myself and my husband.
5. About two weeks ago my solicitor served a property settlement. My husband and I reside under the same roof but live in separate rooms. He got angry and he yelled at me. When he yells at me he is loud and stands in my face. I shake and feel scared and intimidated.
6. About 2:30 p.m. my husband and I got into a verbal argument over the property settlement. Again he started to yell at me. I was in the kitchen. I asked him about the signed documents. He told me that the documents were signed. He got louder and started to poke me. I asked him to leave the house. He said ‘no force in the world will make me leave, I will wipe the floor with you and the kids before I leave’.
7. He started to swear at me in Arabic. I again asked him to leave. My son kept asking [sic] to leave. My husband walked towards me and my son tried to become [sic] between us.
8. My husband kept staying in the house and would not leave. I called the police to come to the house. My husband went outside.

43 The plaintiff was cross-examined in respect of paragraph 6 of her statement to the police as follows (tr 73):

Q. This very argument was because of the fact that he was refusing to give you that deed, wasn’t it?
A. No. We were arguing over the deed, but not to give it to me. He had given it to me.
Q. Well, you clearly say in your statement, don’t you, “I asked him about the signed documents. He told me that the documents were signed.” Well, if he had given them to you you surely would have known they were signed?
A. Yes, I did know, but you’ve got to remember at the time this was a very, very awful moment for me and my whole family. I was being assaulted by him, intimidated. He was a very violent person.

44 The plaintiff and defendant’s son, Jayden Chandab (Mr Chandab), gave affidavit evidence that he went to the solicitors’ office with the defendant and saw him sign each page of the Deed. His affidavit evidence included a statement that when they arrived home the plaintiff asked, “did he sign the papers?” Mr Chandab responded “yes”. The affidavit included the following:

10. My dad then entered the kitchen. I saw my dad come into the kitchen and give the agreement to my mum.
11. My parents were not on speaking terms at that time and I don’t recall there being any discussion between my parents about the Deed that afternoon.

45 Mr Chandab also provided a statement to the police in relation to the events of 8 October 2006. That statement included the following:

4. On Sunday 8 ^th October 2006 I was at home with my family. My elder sister had been at work for most of the day. The morning had seemed normal and everything was quite [sic]. Dad had told us days earlier that he was going to leave. He was going to leave on the Sunday.
5. Just after lunch on the Sunday Mum and Dad were in the area of the sunroom. I was in my room. I could hear what Mum and Dad were talking about. Mum asked dad about some papers. Dad told her that he had ripped them up. Mum said ‘why did you rip them up’. He said ‘because I did not like them’. Dad had a ‘sly’ tone in his voice. Mum kept saying ‘how could you rip them up’, ‘why don’t you agree’. Mum said ‘so when are you moving out’. Dad said ‘I’m not moving out ever … I’ll wipe the floor with you and your family before I leave’. By this time I had come out of my room and into the sunroom. Dad was sitting on the couch and Mum was standing in front of him also in the sunroom.
…
7. Mum was really upset. She ran off to her room and called the police. Dad eventually went outside with my sister Janine. Janine was crying very loudly.
8. Mum went out to the car and wanted to get Janine. Dad was standing outside and was holding Janine. Mum had got keys to Dad’s car as she wanted to get papers out of the car. Dad walked over to Mum and grabbed her wrist and tried to stop her from getting into the car. Dad was still holding Janine when he did this. My sister was still crying. Dad then got into the car with Janine and closed the doors.
…
10. Dad had packed all his stuff up the night before and was planning to move out. I thought Dad was leaving. On the Friday before dad was suppose [sic] to sign papers with his lawyer to say that he would leave. The next day, Saturday, Dad had signed the papers at his lawyers. I was with him when he did this. Mum had asked Dad if he had the papers signed. At first he said yes and then no.

46 Mr Chandab said in cross-examination that, “The only explanation I could have for the differences between what I am saying today, I am telling you the truth, and what’s recorded in this statement is, obviously, I mean a lot of the time because I had given police statements before, they are not very formal, so what you’re saying isn’t really read back to you and I was a lot younger as well, like you said, so I would have just signed this police statement” (tr 57).

47 It is clear that the statements given to the police by both the plaintiff and Mr Chandab do not accord with their evidence that the defendant handed both copies or even one copy of the Deed to the plaintiff without any conversation. However I am satisfied that the plaintiff and the defendant and/or their respective solicitors each had a copy or the original of the Deed. This is clear from the reference to the Deed in the correspondence between the solicitors.

48 It was suggested to the plaintiff in cross-examination that she had signed documents in the defendant’s name when he was overseas. There was no expert handwriting evidence, however to the untrained eye, there is certainly a difference in what purports to be the defendant’s signatures on loan applications and on the ASIC Forms dated 11 September 2006 and his signatures as they appear on his credit cards and affidavits.

49 In the Deed dated 6 October 2006 the defendant agreed that within 14 days of that date he would sign all documents that were necessary to transfer his shares in the Company to the plaintiff. Mr Gilchrist’s letter of 19 October 2006 recorded that “until recently” the defendant “was also a director of” the Company. There was no suggestion made by the defendant’s solicitors that Mr Gilchrist’s statement was erroneous or that the defendant remained as a director of the Company.

50 The solicitors’ correspondence referred to earlier included a statement by Mr Gilchrist on 24 November 2006 that there had been “some agreement as to the binding agreement dated 6 October 2006”. There was no suggestion to the contrary made by the defendant’s solicitors nor was it suggested that the agreement was not “binding” because there had been no compliance with s 90G(1)(e) of the Family Law Act (which provides that such an agreement is only binding if after it is signed “the original is given to one of the parties and a copy is given to the other”).

51 In the Consent Orders dated 22 December 2006, the parties agreed that within 14 days of that date the plaintiff would sign all the necessary documents to transfer her shares and any directorship in CCMG to the defendant and deliver any property, stock plant or equipment of CCMG to the defendant. It was suggested by the defendant that if the ASIC Forms had been consensually executed on 11 September 2006 there would have been no need to include a requirement in the Consent Orders for the plaintiff to transfer her shareholding and directorship in CCMG to the defendant. I disagree. The order required the plaintiff to complete documents in respect of the transfer of her shares in CCMG and deliver any stock to the defendant. These were matters additional to that with which the ASIC Forms dealt.

52 The defendant’s Statutory Declaration of 6 February 2007 stated clearly that he was “previously” a director of the Company. It appears to me that at this time the defendant well knew and accepted that he was no longer a director of the Company irrespective of who signed the ASIC Forms. However in August 2007 the defendant complained to ASIC that he had only then discovered that the plaintiff had removed him from the Company and removed herself from CCMG by forging his signature on the ASIC forms. The defendant knew at the time the Consent Orders were made on 22 December 2006 that it had been agreed, at the very least, that the plaintiff was to transfer her directorship and shareholding in CCMG to him. He also knew that he was no longer a director of the Company, having regard to the terms of his Statutory Declaration.

53 In any event when the defendant was cross-examined he was asked about paragraph 11 of the Deed which required him to sign all documents necessary to transfer his shares in the Company to the plaintiff (tr 152). He agreed that by the time the Deed was signed this had already occurred. He gave the following evidence (tr 153):

Q. Just pause. Ms Chambers' question is although this Deed says that you should transfer your shares in the transport company?
A. Yes
Q. And this is dated 6 October, you had already transferred your shares, had you not?
A. Yes.

54 There are some curiosities about the ASIC forms dated 11 September 2006. There is the fact that the plaintiff did not mention that her sister was present at the meeting at the accountant’s office until after the defendant filed his affidavit denying he signed the ASIC forms. There is also the fact that the plaintiff’s sister was not asked to recall the relevant events until four years later and then gave evidence that did not identify what documents were signed on the day that she attended the accountant with her sister. I have already commented on the unrealistic nature of Ms Darwich’s evidence. There is the rather obvious difference between the defendant’s signature on the ASIC forms and his signature on other documents.

55 However it is not necessary for me to decide whether the plaintiff signed the ASIC forms for her then husband on 11 September 2006. That is because even if the plaintiff had signed the ASIC Forms for her husband without his consent, I am satisfied that the parties’ clear intention as at 6 October 2006 was that the plaintiff would relinquish her shareholding in and directorship of CCMG and the defendant would relinquish his shareholding and directorship of the company. This agreement was recorded in the Deed dated 6 October 2006 and in part in the Consent Orders filed on 22 December 2006. It is true that the Consent Orders do not contain the reciprocal transfer of the defendant’s directorship and shareholding in the Company for the plaintiff’s transfer of her directorship and shareholding in CCMG to the defendant. Although there was quite a deal of focus in the evidence on whether the Deed was provided to the parties pursuant to s 90G(1)(e) of the Family Law Act, I am satisfied that each party had a copy of the Deed and, having regard to the correspondence referred to earlier, the original was probably held by one of their solicitors. I am satisfied that the parties intended that the plaintiff would be the sole director and shareholder of the Company as at the date of the Deed.

56 The defendant’s affidavit of 15 January 2010 included a claim that he met with the plaintiff on the evening of 13 January 2009 in a restaurant in Parramatta. He claimed that during the meeting the plaintiff handed him a “signed form 484” which he annexed as “E” to his affidavit. That form has a signature “N Chandab” on it with the “Date Signed” as “13 01 09”. Although the defendant claims that he obtained the plaintiff’s signature on the ASIC Form on 13 January 2009, and the annexure “E” records the date signed as 13 January 2009, the Form lodged electronically with ASIC records that it was “signed” by the plaintiff on 28 September 2009. It may be that the date of the electronic filing is automatically included on the Form as the “date signed”. However this difference was not explored in the evidence.

57 The defendant tendered a series of text messages from a telephone which he claimed were from the plaintiff. These messages included the following (Ex 16):

13/01/2009 11.31AM What happened in court
13/01/2009 12.51PM What happened in court
13/01/2009 12.57PM I’ll see what I can do
13/01/2009 1.01PM Did they dismiss the case
13/01/2009 6.12PM Around 9
13/01/2009 6.22PM I’ll meet u at Parramatta
13/01/2009 6.26PM I thought u want to talk
13/01/2009 6.31PM Fine
13/01/2009 7.59PM im running late get a table somewhere
13/01/2009 8.04PM 15 min
13/01/2009 8.13PM ok
14/01/2009 1.38AM Good night
16/01/2009 12.39PM Let me know if u still want to go ahead with what we agreed on

58 The plaintiff denied sending these messages and gave evidence that she has not had access to or used the relevant phone number from which they were purportedly sent since prior to the date of the messages. It was suggested that the defendant now has access to that number and has concocted these messages. The plaintiff also claimed that she and the defendant were in the Local Court at Hornsby on 13 January 2009 in relation to her application for an AVO against the defendant. The Court Order dated 13 January 2009 records that the defendant was present at court that day. The plaintiff claimed that far from meeting the defendant at a restaurant in Parramatta to agree to him being reinstated as a director, she and the defendant were in a bitterly contested AVO case.

59 There is a claim in the defendant’s affidavit of 17 August 2010 that when the plaintiff gave him the signed ASIC Form on 13 January 2009 at Parramatta she said “Don’t lodge this form until settlement in the Federal Magistrates Court is finalised and after I tell you to do so”. The plaintiff denied this claim.

60 The Federal Magistrates Court proceedings were finalised on 17 February 2009. However the ASIC Form was not lodged until 28 September 2009. The defendant conceded in cross-examination that the plaintiff did not tell him to lodge the ASIC Form in September 2009 and also conceded that he knew that if he had contacted the plaintiff at that time she would not have agreed to him lodging it (tr 178). Accordingly, even on the defendant’s own evidence the condition precedent to the lodgement of the ASIC Form, that is, that it was not to be lodged until after the plaintiff told him to do so, had not been satisfied.

61 Even if it had been established that the text messages were sent to the defendant by the plaintiff, they do not support the claim that an agreement was reached on 13 January 2009 to reinstate the defendant as a director of the Company. At best they might show that there was communication between the plaintiff and the defendant on 13 January 2009 about a case in court and that there was communication between them whilst there was an Interim AVO in place. However the defendant has not proved that at the relevant time the plaintiff had access to and used the phone.

62 There was a suggestion that the agreement to reinstate the defendant as a director of the Company was in the context of and in exchange for the defendant agreeing to reduce the amount the plaintiff was obliged to pay him from $100,000 to $76,031.75 as recorded in the Consent Orders filed with the Federal Magistrates Court on 17 February 2009. I reject this suggestion. The defendant had left the plaintiff with a liability of $23,968.25 to the Commonwealth Bank of which she was not aware at the time she agreed to pay the defendant $100,000. This was an unjustified burden on the plaintiff and obviously had to be adjusted. The plaintiff had achieved a settlement of the division of property over a lengthy and at times hostile period. I am satisfied that it is highly improbable that the plaintiff would invite the defendant back into the Company not only as a director but as an equal shareholder and arm him with the capacity to issue shares in a company of which he was not a director at the time and to lodge such arrangement with ASIC when he saw fit. There was no evidence called by the defendant to suggest that the plaintiff had authorised him to issue a further 100 shares in the Company and become an equal shareholder.

63 I am satisfied that it is probable that the defendant was in Court on 13 January 2009 and that the plaintiff was also present. I am not satisfied that the plaintiff agreed to reinstate the defendant as a director of the Company. I am satisfied that the defendant was not authorised or entitled to lodge the ASIC Form on 28 September 2009.

64 The plaintiff is entitled to a declaration that she has been the sole director and shareholder of the Company since 6 October 2006. The defendant’s application for declarations that he was a director at any point in the period since that date is dismissed.

65 I am not satisfied that the Register kept by ASIC should record the plaintiff as the sole director and shareholder of the Company prior to 6 October 2006. However I am satisfied that the Register should be rectified to record the plaintiff as the sole director and shareholder of the Company since 6 October 2006 and that any reference in the Register to the defendant being a director or shareholder in the Company after that date should be removed.

66 The plaintiff also seeks an injunction restraining the defendant from representing that he has been a director of the Company during the period from 6 October 2006. The plaintiff also seeks an injunction restraining the defendant from representing that he is presently a director of the Company. I am satisfied that the defendant's conduct in the past would justify a restraining order. However I will give the defendant the opportunity to provide an undertaking to the Court that he will not so represent himself, failing which I will make an order restraining him from making any such representations.

67 The defendant also sought declarations that the plaintiff was in breach of her fiduciary and statutory duties to the Company and an order that she be removed as a director of the Company. The defendant has some difficulty in relation to standing to bring this application. In any event the evidence does not establish that the plaintiff has breached her duties to the Company. There was some cross-examination of the plaintiff about her use of funds from the Company accounts to pay school fees and living expenses. The evidence establishes that the plaintiff did not take regular drawings from the Company by way of salary and the amounts that were paid for living expenses and school fees would probably be appropriately characterised as proper and justifiable drawings from the Company. The defendant's application in this regard will be dismissed.

68 There were numerous claims made by the plaintiff against the defendant. However on the last day of the trial when the Second Further Amended Summons was filed the only other claims pressed against the defendant were for damages of $1,488 for the detention of a Toyota Landcruiser and for the delivery up of certain books and records.

69 Although the defendant was asked some questions in cross-examination about the Toyota Landcruiser (tr 152; 153) there was no evidence to establish any basis upon which the plaintiff would be entitled to “damages” as claimed. Most of the items the subject of the claim for delivery up are documents in respect of the Toyota Landcruiser that the defendant apparently sold. There is no evidence about any of those items or the plaintiff's entitlement to them in light of the fact that the vehicle has been sold to a third party. There is also a claim for three categories of documents relating to the Company. Once again the evidence does not establish that the plaintiff had them in her possession and/or that the defendant has taken them. In those circumstances the plaintiff's application for orders for delivery up will be dismissed.

Conclusion

70 There will be a declaration that Nachwa Chandab has at all times on and from 6 October 2006 been the sole director and shareholder of C & C Transport Enterprise Pty Ltd.

71 The defendant will have the opportunity to provide an undertaking to the Court that he will not represent that he has been a director of C & C Transport Enterprise Pty Ltd since 6 October 2006 or that he is a director of C & C Transport Enterprise Pty Ltd. Should the defendant not provide that undertaking to the Court an injunction will be made restraining the defendant from so representing himself on the next occasion the matter is before the Court.

72 There will be an order that the Register kept by ASIC under s 1274 of the Corporations Act 2001 be rectified by: (1) amending the date from which the plaintiff became the sole director and shareholder of C & C Transport Enterprise Pty Ltd from 11 September 2006 to 6 October 2006: and (2) by removing any entry referring to the appointment of Younes Chandab as a director and/or shareholder of C & C Transport Enterprise Pty Ltd since 6 October 2006.

73 The plaintiff's claim for delivery up in paragraph 8 of the Second Further Amended Summons will be dismissed. The plaintiff’s claim for damages in respect of the Toyota Landcruiser will be dismissed. The defendant's Cross Summons will be dismissed.

74 The parties are to bring in Short Minutes of Order reflecting these findings and an agreed order as to costs. The matter is listed at 10.00am on 12 November 2010 for the purpose of filing those Short Minutes of Order. Should the parties be unable to agree on a costs order I will hear argument on costs on that date.